Damages For Adultery - Dead As A Dodo?

 
“The Dodo suddenly called out 'The race is over!'” (Lewis Carroll, Alice in Wonderland)

Your spouse’s adulterous affair ruins your happy marriage – can you, as the “innocent” spouse, sue the “third party” for damages?

Our law has for centuries recognised such damages claims for adultery, and these are usually based on:

• Insult or injury to your self-esteem (“Contumelia” in lawyer-speak), and/or
• “Loss of comfort and society” of your spouse (loss of “Consortium”).

“Time for abolition”

Now the Supreme Court of Appeal (SCA) has, in a decision setting aside an award of R75,000 damages in favour of a husband against the man with whom his wife had committed adultery, held that: “…..the delictual action based on adultery of the innocent spouse has become outdated and can no longer be sustained; ….. the time for its abolition has come”.

But is the race really over?

Despite media coverage implying that the end has come for all adultery-related damages claims, the Dodo’s assertion that “the race is over” is not entirely correct – not yet anyway.

The SCA specifically left the door open for future consideration of other marriage-related claims for “abduction, enticement and harbouring of someone’s spouse” as well as claims for monetary loss related to “…..the loss of consortium of the adulterous spouse, which would include, for example, the loss of supervision over the household and children.”  In other words, third party adulterers do still run some risk of liability, and that won’t change unless and until we hear further from our courts on the matter.